Karnataka High Court
Smt P R Shantha vs Sri D Chail Singh on 13 December, 2023
Author: K. Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.546 OF 2017
BETWEEN:
SMT. P.R. SHANTHA
AGED ABOUT 41 YEARS,
W/O C.V. MURALI KRISHNA,
R/AT NO.117, CHILAMAKORI,
100 FEET ROAD, ITTAMADU LAYOUT,
BANASHANKARI III STAGE, III PHASE,
BENGALURU - 560 085.
...APPELLANT
(BY SRI. BHADRINATH. R., ADVOCATE)
AND:
1. SRI. D. CHAIL SINGH
AGED ABOUT 50 YEARS,
S/O LATE DEEP SINGH,
R/AT NO.1 & 2,
SRI. KRISHNA BUILDING,
AVENUE ROAD,
BENGALURU - 560 002.
2. SRI. B. RAJENDRA KUMAR
AGED ABOUT 53 YEARS,
S/O LATE A. BUDMAL,
R/AT NO.10/1, III FLOOR,
RAJDOOT COMPLEX, AVENUE ROAD,
BENGALURU - 560 002.
2
3. SRI. M.R.PRAKASH
AGED ABOUT 70 YEARS,
S/O LATE M.RANGAPPA,
R/AT NO.102/A, BRIGADE MAJESTIC,
I MAIN ROAD, GANDHINAGAR,
BENGALURU - 560 009.
4. SRI. R.VINAYA KUMAR
AGED ABOUT 37 YEARS,
S/O LATE M.RAMAMURTHY,
R/AT NO.102/A, BRIGADE MAJESTIC,
I MAIN ROAD, GANDHINAGAR,
BENGALURU - 560 009.
5. SRI. B.KANTILAL
AGED ABOUT 52 YEARS,
S/O LATE A.BUDMAL,
R/AT NO.28/22, KALAPPA BLOCK,
SRINAGAR, BENGALURU - 560 050.
6. SRI. B PRAKASH CHAND
AGED ABOUT 60 YEARS,
S/O LATE A.BUDMAL
R/AT NO.711, I 'C' MAIN,
8TH BLOCK, JAYANAGAR,
BENGALURU - 560 011.
7. SMT. K.R.MEENA
AGED ABOUT 40 YEARS,
W/O K.RAGHU, R/AT NO.112/1,
SRI. SHIVA KRUPA,
7TH MAIN ROAD, III BLOCK,
THYAGARAJA NAGAR,
BENGALURU - 560 028.
..RESPONDENTS
(BY SRI. GOPAL SINGH, ADVOCATE FOR C/R1;
NOTICE TO R2, R5, R6 ARE SERVED,
VIDE ORDER DATED 25/04/2019, NOTICE TO R3,
R4 AND R7 IS HELD SUFFICIENT)
3
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC, PRAYING TO CALL FOR RECORDS ON THE FILE OF XII-
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-27) AT
BENGALURU CITY AND TO SET ASIDE THE JUDGMENT AND DECREE
DATED 10.02.2017 IN O.S.NO.2964 OF 2010 PASSED BY XII-
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-27) AT
BENGALURU CITY TO DISMISS THE SUIT OF PLAINTIFF/RESPONDENT
NO.1 AND CONSEQUENTLY, TO ALLOW THIS APPEAL WITH COSTS.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 15.09.2023, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/defendant No.4
under Section 96 of Civil Code of Procedure for setting aside
the judgment and decree dated 10.02.2017 passed by the
XII-Additional City Civil and Sessions Judge, Bengaluru, in
O.S.No.2964/2010 for having decreed the suit of respondent
No.1-plaintiff.
2. Heard the learned counsel appearing for the
appellant and learned counsel for respondent No.1.
3. The appellant is defendant No.4, respondent No.1
is the plaintiff and respondent Nos.2 to 7 are defendant
Nos.1 to 3, 6, 7 and 5. The rank of the parties before the
trial Court is retained for convenience.
4. The case of the plaintiff before the Trial Court is
that the plaintiff filed suit against the defendants directing
them to put the plaintiff in possession of the schedule
premises for occupation as a tenant by ejecting the fourth
and fifth defendants who are in illegal occupation of the
schedule premises.
5. It is alleged by the plaintiff in the plaint that he is
a businessman running the business in the name of
M/s. Reliance Stationery World. With intention to expand his
business, as early as in the month of February 2010, he had
come across a premises measuring 4,750 sq., ft., in the
ground floor of the premises in a building next to his
establishment. The said building was leasehold premises of
a late Sri.A.Budmal and others. The plaintiff was directed by
the other tenant in the building to the first defendant-
Rajendra Kumar who is having office in the third floor and
the first defendant disclosed that his father Late Budmal,
himself, Dhirajmal and Ashok Kumar had taken leasehold
rights of the then vacant area of the property bearing Nos.8,
9, 10 and 10/1 situated at Avenue Road. The said property
was obtained on lease from one Rangappa, Ramamurthy and
M.R.Prakash for a term of 33 years commencing from
04.09.1978 to 03.09.2011.
6. It is further alleged that the first defendant and
the lessees had constructed the building and thereafter,
Dhirajmal and Ashok Kumar have released their rights in
favour of first defendant's father and as such, the
constitution of share was 75% to Budmal and 25% to the
first defendant on the leasehold property. It was told that
Budmal has died intestate on 28.12.2009 leaving behind first
defendant's mother and six children of which the first
defendant is one of such legal heir having 1/7th share of late
Budmal. The first defendant represented that he has 35.7%
controlling stake in the leasehold property and he is the
deciding factor in the affairs of the management of the
leasehold property. Having satisfied with the representation
of the first defendant and after the negotiation, a lease
agreement was held between the plaintiff and the first
defendant on 23.02.2010 in respect of property measuring
4,750 sq., ft., on ground floor which is shown as schedule
premises. It is further stated that the plaintiff had agreed to
pay rent of Rs.60,000/- per month to the first defendant
under the agreement. It was agreed to deliver the property
after attending the repairs and white wash. The first
defendant agreed to deliver the possession within fifteen
days of completion of white wash and repairs. After making
the agreement, the first defendant has disputed with his
brothers Kanti Lal and B.Prakash Chand, though they have a
limited right of 10.7% each but they were placing higher
demand of share of rents. This dispute started when the
brothers of the first defendant's came to the know that the
schedule premises has been let out to the plaintiff. The said
Kantilal and his brother Prakash Chand came to the plaintiff
and insisted to pay rent to them otherwise, they will create
problem. The first defendant clarified that they do not have
any lawful claim except their share of rent 10.7% each. That
on 05.03.2010 at 2.00 p.m. some persons broke opened the
lock put to the closed shutters of suit premises and tried
forcibly entry which was prevented by the first defendant
with the help of Police. It is further alleged that the Kantilal
and Prakash Chand intimidated the plaintiff and the first
defendant for rescinding the lease agreement dated
23.02.2010. When the plaintiff refused for the same, a threat
was made. That on 09.03.2010, the husbands of fourth and
fifth defendants along with rowdy elements forcibly broke
opened the lock and occupied the schedule premises illegally.
Thereafter, the plaintiff has come across the fact that Kanti
Lal and Prakash Chand had made parallel lease agreement
dated 25.02.2010, after the lease agreement was made in
favour of the plaintiff and the said agreement was made in
favour of fourth and fifth defendants. On the strength of the
above lease agreement, the fourth and fifth defendants were
in illegal occupation of the schedule premises. The said
agreement was made on the strength of the GPA executed
by Budmal in favour of Kanti Lal and Prakash Chand which
has no force since Budmal died on 28.12.2009. The first
defendant's brother Kanti Lal and Prakash Chand and other
local gunda elements occupied the schedule premises which
caused loss to the plaintiff. The first defendant stated that
he has safeguarded the interest of the plaintiff and that the
second and third defendants have been authorized to put the
plaintiff in possession of the schedule premises. The plaintiff
contacted the second and third defendants, but it is of no
use. Since the first defendant has transferred his right to the
second and third defendants, they were placed favorably
with the fourth and fifth defendants. Hence, the fourth and
fifth defendants illegally occupied the premises. Therefore,
the plaintiff was constrained to file the suit.
7. The second and third defendants appeared and
filed written statement by admitting the property was
leasehold property and the agreement between the plaintiff
and the first defendant in respect of the ground floor
premises and further stated that second defendant is the
sole legal heir of Rangappa and third defendant is the sole
legal heir of Ramamurthy. The entire premises was leased
out by their fathers in favour of Budmal in the year 1978 for
33 years and further admitted that Budmal had 75% of share
in the leasehold rights and his son Rajendra Kumar, first
defendant was having 25% of share in the leasehold rights.
Budmal died leaving behind his wife and six children, each
legal heir has 1/7th share out of 75% of the leasehold rights
till 03.09.2011. The first defendant had independent right of
25% and 10.7% as the legal heir of his father Budmal who
has surrendered the leasehold rights to the second and third
defendants on 17.03.2010. With the surrender, the second
and third defendants are invested with ownership rights on
the premises surrendered and also the other part of the
building. The second and third defendants have admitted
the dispute between the first defendant and the other legal
heirs of Budmal. To defeat the lease created by the first
defendant, who had major stake, in favour of the plaintiff,
Kanti Lal and Prakash Chand and other legal heirs of Budmal
had devised a circuitous route and they have made another
lease on their own, two days later, after the lease of the
plaintiff and with force supported by some rowdy elements.
Thereby, the fourth and fifth defendants are in illegal
occupation of the schedule premises.
8. It is further alleged that lease expired on
03.09.2011. The entire property has to be reverted to the
second and third defendants without any liability. The lease
agreement made by Kantilal and Prakash Chand in favour of
the fourth and fifth defendants is illegal and receipt of
Rs.5,00,000/- as lease deposit, is also illegal. Hence, the
fourth and fifth defendants are to be directed to deposit rents
in the Court.
9. It is further stated that they have succeeded to
the rights of the first defendant and it is their duty to put the
plaintiff in possession of the suit premises and they further
admit that the fourth and fifth defendants are in illegal
occupation as the lease created by Prakash Chand and Kanti
Lal are illegal. Hence, they prayed for passing the suitable
order.
10. The fourth defendant appeared and filed written
statement contending that the suit is not maintainable and
denied all the allegations made by the plaintiff in paragraphs
2 to 4 as false. It was contended that on 23.11.2009 a
Memorandum of Understanding was entered into between
Budmal and his power of attorney holders Prakash Chand
and Kanti Lal and possession of the suit property was given
to fourth and fifth defendants for doing business. There was
lot of damages in the premises and repair work was taken
and subsequently, Lease Deed was executed by canceling
the MOU by a shara. Therefore, the plaintiff searching the
property and entering into the lease wit the first defendant
does not arise. The plaintiff has created the Lease Deed
dated 23.02.2010 to create pressure on the this defendant.
11. It is further alleged that the first defendant has
created lot of problem and interfering with the defendant in
doing business. The fourth and fifth defendants have filed
civil suit against Prakash Chand, Kanti Lal and Rajendra
Kumar and an injunction order was operating against them in
O.S.No.1676/2010. Now the plaintiff came up with the false
case by putting pressure on the fourth and fifth defendants.
Hence, the suit is not maintainable and prayed for dismissal
of the suit.
12. The sixth and seventh defendants have filed
separate written statements by admitting that the entire
leasehold premises right was for 33 years. The first
defendant had 25% share of leasehold rights and Budmal
had 75% share of leasehold rights. They also admitted that
Dhirajmal and Ashok Kumar were removed from leasehold
right with the execution of the Release Deed in favour of
Budmal who died on 28.12.2009 by leaving behind the first
defendant, five other children including sixth and seventh
defendants and Kanchan Bai, the mother of the defendants
as legal heirs. It is further contended that they were not
aware about the tenancy rights created by the first
defendant in favour of the plaintiff on 23.02.2010, but they
admitted that they have executed Lease Deed in favour of
the fourth and fifth defendants on 25.02.2010. Further, they
admit that Rajendra Kumar-first defendant has surrendered
the leasehold rights including the share which he would get
under the legatee from his father in favour of the second and
third defendants under the registered Surrender Deed dated
17.03.2010. Thereafter, some negotiations and meetings
were held and the other legal heirs of Budmal were agreed to
surrender remaining leasehold rights to the second and third
defendants. Thereby, the second and third defendants
became absolute owner of the entire property. The tenancy
created by the sixth and seventh defendants is disputed by
the plaintiff, the second defendant, third defendant and the
first defendant in respect of the schedule premises. It is
further contended that these defendants did not have any
right, title over the schedule premises as all the rights are
reverted to second and third defendants. Hence, they prayed
for passing the suitable orders.
13. Based upon the pleadings of the parties, the Trial
Court framed five issues which reads as under:
ISSUES
i. Whether plaintiff is entitled for possession
of the suit property as a lessee of the first
defendant?
ii. Whether the plaintiff proves that the
defendants 4 and 5 are to be evicted from
the suit property as they are in illegal
occupation?
iii. Whether defendants 4 and 5 prove that the
plaintiff has created an antidated lease
deed dated 23.02.2010 and as such he is
not entitled for any reliefs?
iv. Whether the suit is bad for non-joinder of
Mr. B. Prakash Chand and Kanthilal?
v. What order or decree?
14. On behalf of the plaintiff, plaintiff examined
himself as PW.1 and got marked three documents and on
behalf of the defendants, GPA holder of fourth defendant
examined as DW.1 and got marked eight documents. After
hearing the arguments, the Trial Court answered issue Nos.1
and 2 in the affirmative and issue No.3 in the negative and
held that issue No.4 does not arise for consideration and
finally, decreed the suit.
15. Being aggrieved by the judgment and decree
passed by the Trial Court, the fourth defendant has filed this
appeal.
16. The learned counsel for the appellant has
contended that the judgment and decree passed by the Trial
Court is not sustainable under the law, which is illegal,
perverse and bad in law. Further contended that the
impugned judgment is highly arbitrary in nature. The suit of
the plaintiff is not maintainable. The Trial Court failed to
appreciate the evidence led by both the parties both oral as
well documentary. The plaintiff based upon the invalid
documents and rental agreement dated 23.02.2010, has
created the Ex.P.1 and Ex.P.3, which are not at all valid in
the eye of law. Though, the DW.1 produced the documents
that is the judgment and decree in O.S.No.1676/2010
marked as Exs.D.6 and D7 and the rental agreement dated
25.09.2014, executed by the second and third defendants in
favour of the appellant, which was marked as Ex.D.8, but the
Trial Court has not properly appreciated the same and
passed the impugned judgment, which is not correct.
17. It is further contended that the Trial Court has
failed to consider that the first defendant has lost his right
over the scheduled property under the Surrender Deed dated
17.03.2010 in favour of second and third defendants.
Consequently, the rental agreement dated 23.02.2010
executed by the first defendant in favour of the plaintiff is
automatically canceled. The rental agreement dated
23.02.2010 is invalid in the eye of law. Therefore, the
plaintiff has no locus standi to pursue the matter and he has
no right to evict the fourth and fifth defendants. It is further
contended that the lease agreement dated 04.09.1978
executed by the father of the second and third defendants in
favour of Budmal is only for 33 years, which expires on
03.09.2011. The property was reverted back to the second
and third defendants, who become the absolute owners,
wherein they have executed rental agreement in favour the
appellant on 25.09.2014 as per Ex.D.8. The appellant is
carrying on the business which is legal and valid. The Trial
Court has failed to consider that the father of the second and
third defendants executed Lease Deed only for 33 years in
favour of Budmal, who died on 28.12.2009, leaving behind
his wife, 04 sons and 02 daughters as legal heirs. At the time
of his death, he had 75% share in the leasehold rights and
first defendant had 25% in the leasehold rights. Under these
circumstances, the first defendant who is one of his sons,
could not have executed the lease deed in favour of the
plaintiff, without having any authority from other legal heirs
of Budmall, and the same is invalid. The Trial Court failed to
appreciate the cross-examination and the Surrender Deed
executed in favour of the original owners. Ex.D.5 is not
appreciated by the Trial Court. Therefore, the judgment and
decree passed by the Trial Court in favour of the plaintiff is
liable to be set-aside. Hence, prayed for allowing the appeal.
18. Per contra, the learned counsel for the first
respondent/plaintiff has supported the judgment and decree
passed by the Trial Court and contended that the plaintiff has
entered into lease agreement with the first defendant, who is
having 35.7% share of leasehold rights prior to the lease
agreement of the first defendant, which creates subsequent
lease agreement of the plaintiff. As per the agreement, the
possession should be delivered within 15 days after repairing
of the premises, but the fourth and fifth defendants with the
gunda elements entered into the premises and illegally
occupied. Therefore, they have to be evicted from the
premises. The plaintiff being the lease holder is entitled for
the premises. Therefore, he has supported the judgment of
the Trial Court. Hence, prayed for dismissing the appeal.
19. The counsel for the appellant filed I.A.No.1/2023
under Order 41 Rule 27 of CPC, seeking permission to
adduce the additional evidence by producing the copy of the
03 documents viz.,
i. Copy of the registered lease deed dated 04.09.1978
between Rangappa, M.R.Ramamurthy and M.R.Prakash
in favour of A.Budmal, Rajendra Kumar, Ashok Kumar
and Dhirajmal,
ii. Copy of Release deed dated 20.10.2001 between
B.Rajendra Kumar in favour of A.Budmal, and
iii. Copy of the registered Surrender deed dated
17.03.2010 by B.Rajendra Kumar in favour of
M.R.Prakash and R.Vinay Kumar.
20. It is contended that the first respondent-plaintiff
filed the suit and got the decree. At the time of presenting
the appeal, it is pointed out by the learned counsel that the
surrender deed dated 17.03.2010 was misplaced. The other
two documents are the admitted documents and these
documents are necessary for adjudication of the case. Hence,
prayed for allowing the application.
21. The first respondent-plaintiff has also filed a
similar application under Order 41 Rule 27 of CPC seeking
permission to produce the copies of 09 documents which are
as under:-
i. The surrender lease dated 17.03.2010 made by
Rajendra Kumar in favour of M.R.Prakash and
Vinay Kumar,
ii. The surrender lease dated 28.03.2011 made by
Smt.Kanchan Bai and others in favour of
M.R.Prakash and R.Vinay Kumar.
iii. The registered lease deed dated 05.06.2010 made
by M.R.Prakash and R.Vinay Kumar in favour of
Smt.Leeladevi and D.Chail Singh for a period of
20 years.
iv. The lease deed dated 30.03.2004 made by
A.Budmal and Rajendra Kumar B., in favour of
South Indian Bank Limited.
v. The certificate issued by South Indian Bank
Limited dated 29.06.2006.
vi. The certificate from Syndicate Bank dated
12.05.2009.
vii. The certificate from Syndicate Bank dated
05.03.2010.
viii. The Deed of lease dated 05.05.2009 by A.Budmal
and Rajendra Kumar B., in favour of Syndicate
Bank.
ix. The Encumbrance Certificate for the period from
01.04.2009 to 29.03.2011.
22. The first respondent has contended that these
documents were necessary documents which were not
produced and most the documents were admitted documents
by the parties. Therefore, prayed for allowing the application.
23. Having heard the arguments of the learned
counsel for the parties and on perusal of the records, the
following points that would arise for consideration are as
under:-
i. Whether the plaintiff proves that he has
entered into lease agreement with the first
defendant, thereby he is entitled for
possession of the suit property as a lessee?
ii. Whether fourth and fifth defendants shall
be evicted from the scheduled premises, as
they are in illegal possession.?
iii. Whether the fourth and fifth defendants
prove that the plaintiff created a false
antidated lease deed dated 23.02.2010.?
iv. Whether the appellant as well as the first
respondent have made out sufficient
grounds for production of additional
documents as additional evidence under
Order 41 Rule 27 of CPC?
v. Whether the judgment of the Trial Court
calls for interference.?
24. Having heard the arguments on the Interlocutory
Applications filed by both the appellant as well as first
respondent under Order 41 Rule 27 of CPC, these documents
appear to be relevant documents and admitted documents
by the parties. Therefore, the additional documents produced
by the parties shall have to be permitted to produce.
25. On careful reading of the pleadings of the plaintiff,
defendants and their oral evidence including the documents,
some of the admitted facts of both the parties are as under:
i. It is an admitted fact that the schedule
premise was previously a vacant land
belongs to one M.Rangappa,
M.R.Ramamurthy and M.R.Prakash and the
said three persons leased out the land to
Budmal and his son Rajendra Kumar-the
first defendant, his brothers Ashok Kumar
and one Dhirajmal vide lease deed dated
04.09.1978 for 33 years expiring on
03.09.2011. They were permitted to
construct building and leased out to
tenants and on or before expiry of the
lease period, they have to surrender the
schedule premise to the lessor.
ii. It is an admitted fact that the second and
third defendants are the legal heirs of
original owners of the land.
iii. It is also an admitted fact that Budmal and
above three persons shared 25% of share
each. During the lifetime of Budmal, Ashok
Kumar one of the son of Budmal and
Dhirjamal, relinquished their right of 25%
of their share in favour of Budmal.
Thereby, Budmal became 75% shareholder
in the leasehold rights and the first
defendant-Rajendra Kumar continued to
hold 25% of share in the leased property.
iv. It is an admitted fact that previously, the
premises was let out to South Indian Bank
on 30.03.2004 by Budmal and the first
defendant and Budmal was receiving 75%
of the rent and the first defendant-
Rajendra Kumar was receiving 25% of the
rent which is available in the additional
documents produced by the plaintiff. The
plaintiff has also produced the certificate
issued by the South Indian Bank for paying
25% of the rent to the first defendant-
Rajendra Kumar. Subsequently, the South
Indian Bank vacated the premises. Later, it
was leased out to Syndicate Bank vide
Lease Deed dated 05.05.2008, both
Budmal and the first defendant were
receiving rent from the Syndicate Bank.
Later, the Syndicate bank also vacated the
premises and the said premises fell vacant.
v. It is also an admitted fact that the said
Budmal died on 28.12.2009 and prior to
that, he had executed GPA in favour of
sixth and seventh defendants who are his
children.
vi. It is an admitted fact that after the death
of Budmal, 75% share of the deceased-
Budmal was succeeded by seven legal heirs
including the first defendant. Thereby, each
legal heir of Budmal gets 10.7% share and
the first defendant is having major share
i.e., 10.7% as a legal heir of Budmal and
25% of his own share. Thereby, the first
defendant is having 35.7% of share in the
leasehold rights.
26. It is revealed from the records that the first
defendant-Rajendra Kumar leased out the premises to the
plaintiff on 23.02.2010. Ex.P2 is the Lease Agreement
entered into between the plaintiff and the first defendant-
Rajendra Kumar. The same is under challenge.
27. The case of the fourth defendant/appellant is that
the children of Budmal, sixth and seventh defendants being
GPA holder of Budmal entered into a lease agreement with
the fourth and fifth defendants for letting out the premises
on 25.02.2010 and during the dispute, the fourth defendant
already entered into the premises and occupied the disputed
property. Whereas, the plaintiff claims that he has entered
into agreement with the first defendant who is having 35.7%
share holding rights and subsequently, the first defendant
has surrendered the leasehold rights to the second and third
defendants on 17.03.2010. The plaintiff further contended
that after the surrender of leasehold rights, there was lease
agreement entered into between the plaintiff and the original
owners-the second and third defendants on 05.06.2010.
Thereby, the plaintiff is entitled for the possession of the
property. It is further contended that the sixth and seventh
defendants who are the GPA holders of Budmal will not get
any right over the property as after the death of Budmal,
GPA also extinguishes and dies along with the executor.
Therefore, the sixth and seventh defendants have no right to
lease out the property to the fourth defendant. Thereby,
fourth defendant is not entitled for the suit schedule
property. To prove the said contention, the plaintiff has
produced the agreement entered into between the first
defendant and the plaintiff under Ex.P2. The additional
documents produced by the plaintiff reveals that the said
Rajendra Kumar-first defendant, after executing the lease in
favour of the plaintiff, has surrendered his leasehold rights to
the original owners-second and third defendants on
17.03.2010. The Deed of Surrender of Lease dated
17.03.2010 clearly reveals that the share of Rajendra Kumar
including 10.7% as a legal heir of Budmal and 25% of his
share was surrendered to the original owners i.e., second
and third defendants. Admittedly, the original Lease Deed
entered into between Budmal and the original owners
expired on 03.09.2011.
28. It is also found in the documents produced by the
plaintiff-first respondent that a Deed of Surrender of Lease is
executed by all the legal heirs of Budmal in favour of the
original owners i.e., second and third defendants on
28.03.2011. Thereby, the entire leased property has been
surrendered by Budmal's legal heirs and one of the lessee
i.e., first defendant in favour of the original owners prior to
expiry of the leasehold rights which expires on 03.09.2011.
Thereby, the lands or schedule premises were reverted back
to the second and third defendants and thereby, all the legal
heirs of Budmal and first defendant have lost their leasehold
rights.
29. However, prior to the surrendering of the
leasehold rights by the first defendant, he has already
entered into lease agreement with the plaintiff on
23.02.2010 under Ex.P2 and subsequently, on 25.02.2010,
the sixth and seventh defendants executed another lease
agreement in favour of the fourth and fifth defendants under
Ex.D3. The dispute is mainly on the ground that whether the
sixth and seventh defendants have any leasehold rights for
entering into agreement with the fourth and fifth defendants
under Ex.D3 as on 25.02.2010. The fourth defendant has
also produced Ex.P5, Memorandum of Understanding dated
23.11.2009 entered into between the sixth and seventh
defendants as GPA holders of Budmal in favour of Shantha
and Meena. The fourth defendant has also relied upon
Exs.D6 and D7-Judgment and decree passed by the City Civil
Court in the suit filed by the fourth and fifth defendants
against the sixth and seventh defendants wherein decree is
granted directing not to interfere with the schedule premises.
30. As stated above, the sixth and seventh
defendants executed the lease agreement in favour of the
fourth and fifth defendants under Ex.D3 on 25.02.2010. It is
pertinent to note that the sixth and seventh defendants are
claiming share as GPA holders of Budmal. The said Budmal
after executing the GPA in favour of sixth and seventh
defendants as per Ex.D2 on 11.11.2008, he died on
28.12.2009. Once Budmal dies, the execution of the GPA in
favour of the sixth and seventh defendants also extinguishes
and no right will continue in favour of the sixth and seventh
defendants under Ex.D2 and Ex.D2 has no legal value.
Therefore, the sixth and seventh defendants have no right to
execute any lease agreement in favour of the fourth
defendant and the fourth defendant will not get any right
from the sixth and seventh defendants which is based upon
the GPA which has no value in the eye of law.
31. That apart, as per the document produced by the
plaintiff, all the legal heirs of Budmal including the sixth and
seventh defendants, other than the first defendant have
surrendered the leasehold rights in favour of the original
owners i.e., the second and third defendants on 28.03.2011.
Thereby, even though the sixth and seventh defendants have
executed the lease agreement as a GPA holders, it has no
value and even otherwise, as legal heirs of Budmal, if they
are having any share i.e., 10.7% each is also surrendered to
the original owners. Thereby, the fourth defendant will not
derive any leasehold right from the sixth and seventh
defendants. After surrendering the leasehold rights by the
legal heirs of Budmal, there is no agreement entered into
between the fourth defendant and the second and third
defendants who are original owners.
32. Once the original legal heirs of Budmal have
surrendered the leasehold rights to the second and third
defendants on 28.03.2011, the leasehold rights comes to an
end. Even otherwise, the fifth and sixth defendants are
claiming rights through power of attorney executed by
Budmal, in view of the death of Budmal, the power of
attorney loses its power and the sixth and seventh
defendants lose legal right under the said power of attorney.
In other words, on both count, the sixth and seventh
defendants have lost leasehold right as a legal heir of
Budmal as well as GPA holder of Budmal in view of
surrendering of leasehold rights to the original owners and
the death of Budmal. Therefore, Ex.D2-Power of Attorney will
not come to the aid of appellant/fourth defendant and the
fourth defendant cannot claim any leasehold right under
Ex.D3 which was executed by the sixth and seventh
defendants.
33. On the other hand, Exs.D6 and D7 is a copy of
judgment and decree obtained by the fourth and fifth
defendants by filing suit against the sixth and seventh
defendants and making the first defendant as party. It is
nothing but the judgment between lessee against lessor
based upon Ex.D3 which has no value in view of losing legal
right by the sixth and seventh defendants due to the death
of Budmal and surrendering of the leasehold rights to the
second and third defendants. Therefore, Ex.D6 will not come
to the aid of the fourth defendant and the plaintiff was not
party to the said suit.
34. Though appellant's counsel has produced the
Deed of Surrender of Lease said to be executed by the first
defendant surrendering the leasehold rights to Budmal on
20.10.2001, but in view of the Certificate issued by the
Syndicate Bank as well as South Indian Bank, the first
defendant continued to receive 25% of the rent upto 2009
from the said two banks who are the lessees. Therefore, the
documents dated 20.10.2001 produced by the appellant is
not useful to the appellant's case.
35. On the other hand, the plaintiff is successful in
proving that he has entered into agreement with the first
defendant on 23.02.2010 and subsequently, on 17.03.2010
he has surrendered the leasehold right to the second and
third defendants. In the Deed of Surrender of Lease there is
a recital at paragraph-10 which is as under:
"That a premises measuring about 4750
square feet on the ground floor has been let to
Sri.Chail Singh of Reliance Stationery World
having business at No.20, Krishna Building,
Avenue Road, Bangalore-560 002, under a lease
agreement dated 23/02/2010, after the death of
the father of the first party Sri.A.Budmal and all
the rights created under the lease agreement
dated 23/02/2010 in favour of Sri.Chail Singh are
herewith passed on to the second party."
36. On perusal of the above recital in the Deed of
Surrender of Lease executed by the first defendant in favour
of the second and third defendants, it is clearly mentioned
that he is passing the lease agreement entered into between
himself (first defendant) and the plaintiff to the original
owners viz., M.R.Prakash and R.Vinaykumar, second and
third defendants. Therefore, the plaintiff entered into
agreement with the first defendant and subsequently, it was
agreed by the second and third defendants who have taken
over the said lease agreement from the first defendant, the
plaintiff continued to be lease agreement holder of the
original owners i.e., the second and third defendants.
Therefore, I am of the view that the plaintiff is successful in
proving that he has entered into lease agreement with the
original owners under Ex.P2 and thereby, he is entitled for
the possession of the said premises. On the other hand, the
fourth defendant has forcibly entered into the premises
based upon Ex.D3-Lease Agreement entered with sixth and
seventh defendants which has no legal value. Therefore, the
suit of the plaintiff is required to be decreed and the fourth
and fifth defendants shall vacate the premises and hand over
the vacant possession to the plaintiff.
37. Therefore, I answer Point Nos.i and ii in favour of
the first respondent/plaintiff and Point No.iii in negative against
the appellant.
38. Interlocutory Applications filed by both the parties
for production of additional documents are taken on record. The
said Interlocutory Applications are accordingly allowed. Point
No.iv is answered accordingly.
39. In view of the above findings, the Trial Court has
rightly decreed the suit based upon the evidence and there is
no error committed by the Trial Court which calls for
interference by this Court. Therefore, the appeal filed by the
fourth defendant deserves to be dismissed.
40. Accordingly, the appeal filed by the fourth defendant
is hereby dismissed.
Pending I.As., if any, do not survive for consideration and
accordingly, the same stand disposed of.
Sd/-
JUDGE
NB/KJJ
CT: SI
